Expert Evidence in Sexual Abuse Cases

Introduction

The proving or disproving of allegations of sexual abuse is usually determined by an assessment of the complainant’s credibility. In a few cases a complainant is seen immediately as having so little credibility that the allegations never become the subject of court proceedings. In other cases the allegations are accepted as true, even by those accused. The material in this booklet and the seminar series on the issue are intended to assist lawyers with “the hard cases”, those where on one side there may be an apparently convincing complainant and on the other side a defendant who steadfastly asserts his or her innocence.

The way in which sexual abuse allegations are investigated, presented in court and the law applied, has been much affected by the thinking, research and lobbying of experts and non-experts outside the legal profession. For example, the views of psychiatrists and psychologists have been reflected in the way children are interviewed and in the abolition of the requirement for corroboration, and the provision for a judge to explain why there can be good reasons for delay in making complaint.

Undoubtedly too, in the past the approach of defence lawyers has been influenced by commonly expressed views that certain behaviour was indicative of abuse having occurred, that children would not have the knowledge or experience to make up a false allegation of abuse, and by a perception that complainants would not normally want to put themselves through the complaint and trial process if their allegations were false.

In the past, expert research was used persuasively to remove obstacles in the legal process to the effective prosecution or proving of sexual abuse allegations. Despite that, misconceptions remain in the community as to how abuse is perpetrated and how it affects those who are its victims.

Those seeking to prosecute or prove allegations of sexual abuse need to have a sufficient understanding of relevant psychological, medical and other scientific knowledge to enable them to determine what evidence should be put before a court and to effectively argue why it should be accepted. They need to be aware of the prejudices and misunderstandings which can make acceptance of allegations more difficult. In some instances, the expert knowledge which is relevant can be put before the court, not just through the arguments of counsel but through evidence. This booklet deals with that in terms of expert opinion as to memory, s 23G Evidence Act 1908, medical evidence and other scientific evidence.

There has also now developed a degree of expert knowledge with regard to false or unreliable memories. Very rarely will that knowledge be the subject of evidence to be given in court but it is knowledge which lawyers need to be aware of. Without it, lawyers may be unable to see how an untrue allegation of sexual abuse might come to be made, how an untrue complaint might nevertheless be apparently convincing and how an allegation might best be tested. The material in this booklet and the seminar should assist lawyers dealing with these cases in any jurisdiction to check allegations that have been made, to assess how the veracity of the allegations might best be investigated and ultimately tested, and to identify the issues that are raised by the allegations and the context in which they have been made.

Generally, in this booklet there is a prosecution and a defence perspective on the issues. We have not attempted to summarise the state of expert knowledge that is relevant to these cases, nor have we attempted to arrive at a consensus as to just what evidence might be admissible or as to how much weight should be given to such evidence. Those who are responsible for investigating these allegations should retain an objectivity and balance which ensures that all relevant information is available to the court which ultimately has to determine the truth of the allegations. That is not easy to achieve for the police or specialist interviewers when their most extensive involvement is with complainants and their supporters. Nor is it easy for the Crown or the defence to retain their objectivity when the adversarial process requires that counsel advocate vigorously and effectively for their side of the case. By presenting expert information and knowledge which is relevant to both prosecution and defence, and by explaining how expert evidence can be used to assist in the proving of allegations, and how such expert evidence can be critically assessed, it is our hope that we will promote the more effective presentation of both prosecution and defence cases and through that assist in ensuring that justice is ultimately done.

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